1171298

research-article2023
PSX0010.1177/00323217231171298Political StudiesShklar

Article
Political Studies

Rights in the Liberal 2023, Vol. 71(2) 279­–294

© The Author(s) 2023
Article reuse guidelines:
Tradition sagepub.com/journals-permissions
DOI: 10.1177/00323217231171298
https://doi.org/10.1177/00323217231171298
journals.sagepub.com/home/psx

Judith N. Shklar

Abstract
This is a republication of Judith N. Shklar’s paper “Rights in the Liberal Tradition” first published in
an issue of Colorado College Studies in 1992. This is the first time the piece has been made digitally
available. Edward Hall and Matt Sleat provide a brief foreword to the essay.

Keywords
Judith N. Shklar, rights, liberalism

FOREWORD

Edward Hall and Matt Sleat

University of Sheffield

This is the first time in the current editors’ tenure that Political Studies has republished a
paper that has previously appeared elsewhere.1 Without digging back through decades of
back issues of Political Studies, we cannot say for certain whether this is something the
journal has ever done before. It is a fairly peculiar thing for an academic journal to do at
all. The decision to republish Judith N. Shklar’s “Rights in the Liberal Tradition” there-
fore stands in need of something by way of justification.
The original occasion for this essay was an invitation to Shklar from Colorado
College to give their Abbott Memorial Lecture on 23 January 1991, an endowed lecture
that was (and still is) given annually in the social sciences.2 As this coincided with the
bicentennial of America’s Bill of Rights, Colorado College had decided to run a series
of lectures on that theme, of which Shklar’s Abbott Memorial Lecture was to be a part.
This explains not only the general focus of the piece—how rights feature in the various
liberal traditions—but also the greater attention that Shklar gives here to what she calls
the “liberalism of rights,” which she identified as central to American political culture.
The essay was then published in Colorado College Studies the following year.3
However, this publication was only distributed to college and university libraries in the
US as part of an exchange scheme. It also was not included in either of the posthumous
collections of Shklar’s work published by the University of Chicago Press—Political
Thought and Political Thinkers and Redeeming American Political Thought—nor noted
280 Political Studies 71(2)

in the list of Shklar’s works contained in the collection Liberalism without Illusions.4
Moreover, the lecture has never been made digitally available. For these reasons,
“Rights in the Liberal Tradition” has largely been overlooked. As interest in Shklar’s
work has increased markedly over the past decade, we felt it a worthwhile endeavor to
reintroduce this essay to a wider readership.
“Rights in the Liberal Tradition” displays many of the virtues of Shklar’s best essays.
It addresses a topic of first order importance to the study of politics in a clear and engag-
ing way, and Shklar’s learning is on display throughout. She moves effortlessly between
offering a detailed examination of different liberal traditions, to discussing the role of
rights in American political culture, before highlighting and addressing three criticisms
often raised against those who engage in rights-talk and practice from within the liberal
tradition itself. Let us, briefly, consider these in turn.
The account of the different strands of liberalism on offer in “Rights in the Liberal
Tradition” is more detailed than the account Shklar offers in her most famous essay,
“The Liberalism of Fear,” and thus essential reading for anyone interested in how she
understood liberalism. In several respects it is also intriguing. All readers of “The
Liberalism of Fear” will remember Shklar’s tripartite distinction between the liberalism
of personal development, the liberalism of natural rights, and the liberalism of fear.
Here, in a lecture given a few years subsequently, Shklar instead offers a fourfold
account of the liberal tradition, and subtly rewords some of her original framing. In this
lecture, Shklar unsurprisingly focuses most of her attention on what she here calls the
liberalism of rights (rather than “the liberalism of natural rights”), focusing on how it
has dominated American political thought. She begins, however, by discussing the lib-
eralism of individual self-development (rather than the formerly worded liberalism of
personal development), before introducing a strain of liberal thinking the earlier essay
did not address, which she calls the liberalism of legal security. This tradition of liberal
thinking, Shklar claims, regards freedom “as the assurance that we all live under a gov-
ernment of clear, known general rules that are applied impartially and fairly to all cases
by incorruptible public servants.” Advocates of the liberalism of legal security thus
emphasize the benefits of the rule of law and regard freedom as the knowledge that one
can safely act how they choose within the sphere that the law assigns to their own dis-
cretion. This is a liberal approach deeply entwined with ideals of legality, and one
which also emphasizes rights to private property and the freedom of economic activity.
Those who have previously studied Shklar’s writings will find this discussion of great
interest given the ways it supplements her analyses of conservative liberalism, the
excesses and limitations of legalism, and her long-running critical engagement with the
work of F.A. Hayek.5
Shklar next turns to the liberalism of fear, stressing that although it too venerates the
rule of law, it is far more politically demanding than the liberalism of legal security.
There is much in this discussion that will interest those who know Shklar’s work pri-
marily due to her endorsement of the liberalism of fear. Many readers are likely to be
somewhat surprised by the fact that, on this telling, the liberalism of fear is far from the
minimalist and austere kind of liberalism it is often taken to be, both by Shklar’s critics
and also by some who like to think of themselves as among her admirers. Shklar is
forthright about the fact that although the liberalism of fear puts the kind of “system-
atic, sustained, and organized cruelty” generated by governments first, it does not end
Shklar 281

there, also seeking to avoid all sources of “avoidable fear.” This, she notes, implies that
liberals of fear should favor the decrease in every form of social inequality, exemplify
a certain kind of democratic ethos, practice principled toleration, and focus on securing
the conditions of liberty for all. With regard to the last point, she discusses why the
liberalism of fear differs from what Isaiah Berlin called negative liberty, insisting that
being free from psychological and physical fear is not to be confused with being unob-
structed by others. The kind of freedom at the heart of the liberalism of fear is, accord-
ing to Shklar, a more demanding and politically responsible way of thinking about how
the like freedom of all can be achieved and protected.6 This discussion will be of rele-
vance to Shklar specialists as well as the wider range of contemporary political theo-
rists interested in liberal conceptions of freedom.
The remainder of the lecture addresses the role that rights have played in the American
political tradition, and touches on many of the characters (Jefferson, Madison, Lincoln,
Locke, Thoreau) and themes (slavery, revolution, religion) that Shklar explores more
fully in the essays collected in Redeeming American Political Thought and also in
American Citizenship: The Quest for Inclusion. Fascinatingly, from reading this essay
alone, one would not know whether Shklar herself more closely identified with the lib-
eralism of fear or the liberalism of rights. This complicates the impression of Shklar’s
thought one is likely to be left with if they only engaged with “The Liberalism of Fear.”
Indeed, in this lecture, Shklar can profitably be read as developing a remark she made in
Ordinary Vices which is often unnoticed; that a liberal politics which utilizes rights is, in
many respects, “entirely compatible with one that puts cruelty first,” even though liber-
als of fear must refrain from anchoring rights in questionable metaphysical or theologi-
cal assumptions.7
“Rights in the Liberal Tradition” ends with Shklar soberly addressing three criti-
cisms of the liberalism of rights that may be made from within the liberal tradition.
Characteristically, she does not pretend there are any easy answers. Indeed, in
response to the criticism that an emphasis on rights may lead to dangerous expansion
of state-power, she notes frankly that the question of “whether a government strong
enough to protect human rights is too frightening and potentially arbitrary is open.”
While she thinks we can have some confidence in the idea that “those public agents
whose sole function is to protect the rights of citizens will not be tempted to abuse
their just powers to create an illiberal regime” this is, she bracingly remarks, “unhap-
pily only a hope.” Here, Shklar’s ideological humility and realistic appreciation of
the sheer difficulties and paradoxes of liberal politics is refreshingly candid, truthful,
and mature.
In the introduction to American Citizenship, the final monograph she wrote, Shklar
remarks that political theory cannot only operate in the “static and empty social space”
of abstract philosophical and conceptual analysis, not least because work of that sort
often simply ends up expressing an author’s uneasiness about a society “they have
made very little effort to comprehend.” Instead, she insists that if political theorists are
to reflect productively on our current political predicaments, they must pay close heed
to “the history and present actualities of our institutions.”8 Our hope is that republish-
ing Shklar’s lecture on the role that rights have played in the liberal tradition may
serve as an exemplar of what such theorizing involves, as well as a fine illustration of
what political theory can achieve when practiced properly.
282 Political Studies 71(2)

Rights in the Liberal Tradition

[26] When Professor Fuller suggested that I talk about “rights in the liberal tradition” I at
once appreciated that he had not asked me to lecture on “liberalism.” Liberalism is often
just a label, while the phrase liberal tradition invites a discussion, not a resort to the dic-
tionary. For the liberal tradition contains many traditions of thought. Moreover, they are
by no means identical in the way they treat the notion of rights. There is only one belief
that gives the liberal mind a characteristic continuity: the conviction that human dignity
demands personal freedom of thought and action. With this thread to guide us, I would
like tonight to undertake a journey of retrieval and in the process I hope to be able to say
something useful about the many kinds of liberal tradition and even about rights.
Let me begin by recalling one of the oldest uses of the world “liberal,” which is not
directly concerned with politics at all. Liberality has since classical antiquity been admired
as a kind of generosity, a readiness to share one’s goods and time with others. To give
freely and openly is an essential part of a good character, and anyone intent upon perfect-
ing her or his personality will cultivate this virtue. It is unhappily not open to all of us, as
Aristotle from the very first noted, because one must have a certain amount of worldly
goods to be able to be liberal at all. This limitation certainly helped to cast liberality into
disrepute as a human virtue. Above all, it was eventually replaced by something quite
different, Christian charity. Later liberals who associated liberty with birth and wealth
came to disdain it as [a] mere form of class display. Montesquieu, for example, thought
poorly of it, a mere form of pride and self-regarding honor. I mention this, because liber-
ality is self-oriented, a part of the ethics of self-perfection. It is not a response to the needs
or claims of others. Their desires, demands, not to mention rights, do not matter. Only
one’s own personality counts. Yet I do not think that we can dismiss liberality from the
liberal tradition entirely, just because it contributes nothing to political liberty. Generosity
does imply a regard for freedom. Liberal persons must be free to pursue their expansive-
ness and they cannot be constrained in deciding how to distribute benefits.
Freedom also plays its part in another old and not directly political use of the word
liberal: when it describes a certain kind of education. Liberal education was never static.
It changed considerably through the years from the set subjects of medieval universities
to the classical and rhetorical education of the Renaissance and to the curricula of schools
and other institutions of learning in the past two centuries. What made all these ways of
educating the young liberal was that they were supposed to liberate them, not only from
ignorance, but also from that narrowness of spirit that afflicts us when we do not learn to
understand languages, sensibilities and thoughts of peoples who do not resemble us
because they are remote from us in time, [27] place, and manner, as the ancient Greeks
were in every way from modern Europeans. Curiosity and intellectual empathy are paths
to liberation for both young and old. One has to be free to change. Otherwise, there is no
point in reading something as utterly distant in every conceivable way as Plato’s Republic
or training one’s mind to grasp the elements of astronomy. Science and abstraction are
flights from the obvious.
Education has always played a significant part in the liberal political tradition because
it holds out the promise of universal freedom. In principle, a liberally educated person can
grasp the experiences of all mankind. Moreover, the liberal arts are also taken to be a
treasure valuable for all and available to all who can and will learn. It would, however, be
Shklar 283

entirely untrue to say that a universal right to education was implied in [the] idea of a
liberal education. Originally, it was taken for granted that only the leisure classes could
ever expect to have any access to it at all. This is also freedom without rights, but the link
between the liberal tradition and education is genuine, because ignorance is a prison in its
effects.
I mention liberality and liberal education to note how many ideas of freedom there are
that are not directly political at all. I do not think that political freedom is by any means
the only sort of freedom that matters, but it may well be that it has become the one essen-
tial condition for all the others. That is why political freedom is what we now normally
and consistently have in mind when we talk about the liberal tradition. What the non-
political uses of the word liberal should recall, is that even in politics, personality and
states of mind are a significant part of our thinking about freedom.
When we do turn to liberal politics we come at once to the rich diversity of a tradition
of many traditions. I cannot possibly offer a complete catalogue of them all, so I shall
limit myself to a mere four types, all of which are still alive and I think flourishing, each
with its own view of rights. Let me list them. First there is the liberalism of individual
self-development, then there is the liberalism of legal security, third there is what I shall
call the liberalism of fear, and finally, and for us here the most important of all, is the
liberalism of rights. I use the word liberalism quite loosely, to simply imply political doc-
trines that place a very high value on the greatest possible personal freedom for each
person in the conduct of his or her life that is compatible with a like freedom for every
other adult person. In the case of the liberalism of rights it is the supreme political princi-
ple. And I quite deliberately added “ism” to liberal now to indicate that we are now turn-
ing to operative political beliefs.
I shall begin with the liberalism of personal development, not because it comes
chronologically first, but because it is the least political and also is closest to the kinds
of liberality I have just mentioned. The argument for allowing all persons the greatest
possible scope for self-expression in speech and what is now called lifestyle is that
otherwise they cannot develop all their potentialities. The chief threat to our self-devel-
opment is, moreover, not merely governmental political oppression, but the pressure to
conform to the conventions and beliefs of our society often referred to as “the masses.”
The tendency of society is to impose a dreary uniformity. The genius of original and
creative individuals is crushed and they suffer persecution, ridicule and rejection, and
never develop their innate talents. [28] In addition, intellectual activity in general
requires a perfect freedom of argument so that truth can ultimately triumph. At the very
least we will all have better [reasons]9 for our opinions if we are forced to answer objec-
tions to them, than we would if we were not challenged by frank opponents. These are
the views that we quite rightly associate with John Stuart Mill. Political freedom clearly
had social benefits for him, because his hopes for social and intellectual progress
depended on creative self-assertion. We all gain from decisions made after open and
vigorous deliberation and from a social climate that is hospitable to inventive and ven-
turesome individuals.
The social benefits of liberty are not, however, what gives the liberalism of per-
sonal development its real urgency. At its heart is the notion of individuality as the
greatest human good. This should not be confused with individualism which gener-
ally implies only a preference for personal independence in the conduct of one’s life.
Individuality means more. It sets the highest value on the creation of a unique person-
ality, one that not only corresponds to the innate tendencies of the person, but is also
284 Political Studies 71(2)

entirely different from all others. Only the formation of a unique self makes life worth
living, and the best self is a creative genius. However, all people may have some pow-
ers of creative imagination and each one of us can fashion a life that is the expression
of a wholly incommensurable, self-created personality. It is to this project that the
pressure of society, certainly middle-class society and perhaps democracy pose a seri-
ous threat. Mill thought it was modern, middle-class civilization and the remnants of
protestantism that were crushing. His friend Alexis de Tocqueville worried more
about democracy and the rule of the majority. But not all the philosophers of indi-
viduality were so anxious. Emerson in his most celebrated essay, Self-Reliance, called
out democratically to each and all to “trust yourself” and to act upon the impulses of
one’s own heart.
This sort of liberalism is clearly indebted to romantic literature and its sensibility. And
while not hostile to rights, it is not very interested in them. Rights presuppose shared rules
in terms of which we all make claims upon each other, and rules tend to be inhibiting and
generalizing. Romanticism therefore tends to be extremely suspicious of them, whether
they are legal or conventional. All threaten the uniqueness and the expressive impulses of
the individual. Conventions enforce mediocrity and a mindless acceptance of the given,
while laws are the will of the majority. When Tocqueville spoke of the tyranny of the
majority, especially in the second volume of Democracy in America, he had this slow
grinding down of individuality in mind. Freedom meant freedom from the dead weight of
the opinions of the mass of well-behaved sheep.
Romantic freedom is not perceived as a collection of rights, but as a quest for creativ-
ity. Like the liberality with which I began my account, it is an ideal of self-perfection, but
it is also a political theory, because it sees individuality engaged in a perpetual conflict
with the rules and regulation of society and evaluates political and social institutions in
these terms. Of all the members of the liberal tradition it is the most concerned to draw a
firm line between the realm of the private and that of the public. To use Thoreau’s terms,
the res publica is not particularly important and must be kept at a distance from the res
privata. The latter should be as extensive as possible while the former shrinks into insig-
nificance. The liberalism of [29] individuality dreams of the triumph of our most purely
personal aspirations.
The next tradition that I want to present is the liberalism of legal security, or of “the
rule of law,” as it is often called.
Here, freedom is seen as the assurance that we all live under a government of clear,
known general rules that are applied impartially and fairly to all cases by incorruptible
public servants. No one may be charged with a crime unless there is a law forbidding
acts at the time when they were performed, and no one may be punished unless it is
proven beyond a doubt that he or she in fact did commit the prohibited deeds. No crime
without a law and no punishment with a crime. Nor is that all. The laws must fit the
temper and needs of a people and give them every opportunity to express their prefer-
ences and interests, so that the rules under which they live suit them and are as conducive
as possible to the greatest good of the greatest number as they perceive it. That may
require a democratic regime, and in Jeremy Bentham’s version of this view it did, but
democracy is certainly not always regarded as necessary for the rule of law. What is
essential is constitutional government, a government limited by strict rules in its conduct
of affairs and answerable in the regular courts for any infractions of the law.
For the individual, freedom is to be found in security. Indeed the two become more or
less identical. Liberty is the certain knowledge that one is perfectly safe to do as one
Shklar 285

chooses within the sphere assigned by law to one’s own discretion, and that the govern-
ment is predictable in its treatment of all citizens. He and she can plan their lives freely
and within a broad framework of general rules. This is a liberalism that defines itself not
against government as such, but against absolute and arbitrary states, that are both prone
to war and to illegality. If the liberalism of individual development owes much to poetry,
the liberalism of fairness is evidently inseparable from the ideals of legality.
It is of course true that this sort of “rule of law” liberalism has often appeared to be
very hostile to the idea of rights. Who can forget Jeremy Bentham’s jeer that rights were
“nonsense on stilts” and his warning that government is supposed to teach us our duties,
not to promote our rights? What he meant was not quite as fierce as all that. He did object
to the notion of natural, pre-social rights, which he took to encourage crime and anarchy,
but clearly the notion of personal security as the highest social good has its own notion of
rights built into it. The legal protection that gives each person a full sense of security in
the enjoyment of his property and his peaceful activities does imply that he or she has a
whole range of legal expectations and legal rights thanks to the law. Security means all
kinds of guarantees of a fair trial in both civil and criminal cases and also in suits that citi-
zens may bring against officials who have overstepped the limits of law. We should
always remember that most of the ten amendments that make up our Bill of Rights deal
with the rights to fair court procedures. So the liberalism of legal security is not really
indifferent to rights, but it regards them as instruments, as means to a greater social and
personal good: security and the peace and prosperity that it yields.
There is one set of rights that “rule of law” liberalism cherishes particularly as the
chief creation of positive law, that is the right to property and with it, the freedom of eco-
nomic activity under the safe umbrella of the [30] law-abiding state. I do not claim that
this is the only form of liberalism that treats the freedom of the market as a fundamental
public good, but for purposes of a clear map of the liberal tradition I do want to emphasize
the primacy that “rule of law” liberals assign to the right to private property and to eco-
nomic freedom, both of which depend crucially upon legal security.
This is certainly a genuine form of liberalism and its defenders regard personal liberty
as among the chief goods to be gained from legally limited government and the rule of
law. However, the origin and justification of rights is not of vital significance for the
adherents of [the] “rule of law,” the security, prosperity and freedom of thought and action
created by a liberal system of law is what really counts. Security and liberty are simply
seen as inseparable, and rights are legal instruments designed to bring us both. Therein
also lies its enormous appeal to people who have suffered under autocratic, totalitarian or
anarchic regimes.
This thought brings us to a third tradition within the liberal tradition, the liberalism of
fear. At its barest, this type of liberalism fears fear itself, and it is very old. It first appears
in the midst of the violence of the wars of religion in early modern Europe and it has never
lost its relevance since that time. In our dreadful century it has come to regard inequalities
in military power as the chief source of threats to life and limb and so it looks upon mod-
ern governments as the chief source of the great political evil of the age, systematic,
sustained, and organized cruelty. This implies no indifference to non-governmental power
complexes and the havoc that they can and do cause, but the liberalism of fear now looks
first and foremost to militarized governments and considers the ways in which they can
be controlled in the interest of the freedom from fear.
Not all those who have throughout history looked upon human cruelty as our greatest
vice and who have feared fear have been liberals. The statesman and writers who were
286 Political Studies 71(2)

called “les politiques” in sixteenth-century France were chiefly interested in establishing

a strong monarchy to put an end to the butchery of the civil wars, and to get religious pas-
sions out of politics. They did not regard religious toleration as an inherently worthy
attitude, but only looked to an end to religiously inspired murder, to the sort of horrors we
see in Lebanon and Northern Ireland. The liberalism of fear today has greater expecta-
tions than this “peace at any price” response. It sets its sights higher. It looks not merely
to the elimination of terror, but also to the restraint of all sources of avoidable fear and it
does so with a view to enhancing the personal freedom of all. Its hope is to create a soci-
ety where everyone can live without expecting intimidation from either public or private
agents. The liberalism of fear is consequently inclined to favor the decrease in every form
of social inequality. Without in the least looking to a state of equality, it merely seeks to
limit such inequalities as place the power of effective threat into a few hands. Any con-
centrations of social power that expose people to fears of deprivation of employment,
health, and education are objectionable. It is a liberalism that is less egalitarian than anti-
monopolistic, and such has been its character for many centuries in fact.
The fear of socially organized physical might as inevitable has gained a lot of force
since the First World War. Until 1914 it was generally believed that torture had been
eliminated as a public practice in Europe and North America,10 but the intelligence and
loyalty requirements of that war brought [31] them back even among the so-called
civilized nations. The great technological advances in the instruments of torture also
helped its return and subsequent spread. The upshot has been that every day there is
someone being tortured in the world, and Amnesty International is not likely to run out
of business soon.
The struggle against public terror is not all that has given the liberalism of fear its
perpetual relevance. It has also arisen in protest against the passions of the age of ideol-
ogy. Its classical text may well be Locke’s Letter on Toleration with its argument that
religious faith and association are voluntary and private experiences and undertakings,
and that force can have no part in stimulating faith or allegiance to doctrines. For there is
nothing like the perfect self-assurance of ideological fervor to encourage the will to per-
suade with a sword and to convert by extermination. What religion began, ideology con-
tinued in the course of its murderous career since the past century, to reveal how thin the
veneer of civilized restraint was in Europe.
For the liberalism of fear toleration of divergent views thus is neither a way merely to
maintain peace nor to foster romantic self-development. Tolerance and moderation are
regarded as the liberal virtue[s] and intrinsically admirable human traits, and [they
demand] a lot of self-restraint.11 For it is not easy to accept the notion that only in the rar-
est circumstances may one impose one’s views and will upon other adult persons. Rights
here function as restraints rather than as claims, but they are important. Rights are defined
by the duty to abstain from those types of conduct that are threatening and that tend to
legitimize the spread of fear. Rights are legal and political stop signs that tell one that to
go beyond a certain point in argument, gesture, prohibition, and intimidation are to arouse
unjustifiable fear. The worst result is always to render the infliction of fear as socially
respectable. Liberty for the liberalism of fear is not merely not being obstructed, it is
freedom from being made psychologically or physically afraid.
The liberalism of fear thus goes beyond the security offered by the law that “rule of
law” liberalism champions. For while both share a hostility to concentrated power in
the hands of the governments of the world, the liberalism of fear demands more. It calls
for principled toleration, for a diminution of social inequalities, and it does not limit
Shklar 287

itself to the law to protect people against the fear of wanton cruelty. It is more alert to
the conditions of liberty, to social and personal arrangements that render liberty possi-
ble. The empowerment and education of young and old, male and female, is meant to
make them self-reliant and active citizens, capable of defending their integrity, rather
than their individuality. Battered by propaganda, intimidated by arms of unspeakable
potency and afraid of a future that might well be worse, individuals have as few
resources as they have ever had to protect themselves against fear and shame.12 The
liberalism of fear takes these circumstances into account to promote at every turn poli-
cies, practices, and beliefs that will diminish the political sources of fear and fortify us
sufficiently to enable us to respect ourselves and others and to learn to argue with rather
than to destroy those who differ from us.
This is scarcely a utopian temper, but it is not all that difficult to imagine what a soci-
ety of mutually forbearing, unafraid, and reasonably optimistic [32] people might look
like, even if we do not expect ever to see one. It would be a liberal society in which gov-
ernment would still be coercive, but not more so than was generally recognized as abso-
lutely necessary and in which no13 one was so poor as to have to sell himself or herself
and no one so rich as to be able to buy him or her. The phrase is, of course, Rousseau’s
and it serves to link the liberalism of fear to a democratic ethos that requires a reduction
of social inequalities. It is, however, not a matter of rights so much as a vision of personal
and public relations devoid of fear and suspicion, and therefore free, not from duties and
concerns for others, but from that external pressure and suffering that fear of deprivation
inflict upon us.
It would be erroneous to identify the liberalism of fear too closely with what is usually
called negative liberty. The phrase has been made famous by Isaiah Berlin, who insisted
that liberty could mean only one thing, not being interfered with by others, or in a later
formulation, to have “open doors.” In contrast to negative liberty he put positive liberty,
by which he signified the liberation of our higher, rational self from the bonds of our pas-
sions and lower self. This freedom is not independence from restraints, but relief from the
burdens of sin, irrationality and false consciousness. The trouble with positive liberty is
that it is easily abused by authoritarian and totalitarian governments which propose to
liberate their subjects by forcing them to live up to the demands of the higher self as it is
defined by the reigning ideology. There is, however, no political idea that cannot be dis-
torted. Negative liberty can also become an instrument of destruction. If we do nothing to
create the conditions of liberty, then the possibility of being allowed to sink freely and
unimpeded into crippling disease and paralyzing poverty without anyone interfering or
closing a door is very high. If one thinks realistically of society in terms of its inevitable
inequalities it becomes clear that the powerful have to be restrained in the interest of the
freedom of the less well-endowed. The real issue is always how to balance incompatible
claims in such a way as to reduce effective intimidation. To permit the strong to freely
enslave the weak, is as much of an abuse of negative liberty as forced indoctrination is an
abuse of positive liberty.
The distinction between negative and positive liberty is particularly irrelevant to the
liberalism of rights, which is the last strand in the liberal tradition that I want to take up
now. This is the liberalism that has developed in the United States. The public philosophy
of America has all along treated the realization of individual rights as the aim of all legiti-
mate institutions. Rights were from the first regarded not as instruments, but as the very
heart of a just government. The entire Revolutionary struggle against Britain had been
expressed in terms of natural rights. Moreover, the incongruity of chattel slavery in a
288 Political Studies 71(2)

modern constitutional republic continued to haunt the liberal conscience. And it was an
evil that could be abolished only by a reaffirmation of the inalienable rights of man. Until
the passage of the Fifteenth Amendment, America was not a liberal society. As long as the
slaves were denied both moral and negative freedom, the positive freedom of all was in
jeopardy and the promise of the Declaration of Independence was not kept. To finally
vindicate it again required a struggle for rights. Finally, federalism and the need to inter-
pret a written [33] constitution, as well as the traditions of the common law, were all
combined in America to give the judiciary a wholly unique position in the political sys-
tem. As a result American liberalism has been particularly deeply marked by the general
predominance of legal discourse and its language of claims and counter claims and of
conflicting rights. It is not surprising that we all take rights seriously.
Let me begin with the Revolutionary heritage and with the radiating influence of the
Declaration of Independence well into the nineteenth century. No one can read the
tracts of the American Revolution without seeing the name and words of the “Great Mr.
Locke” over and over again. John Locke’s doctrine of natural rights clearly provided
the framework within which Americans could express their grievances against Great
Britain. They read Locke’s Second Treatise very simply and literally. They were not
scholars deconstructing a text. What they found in his pages was that human beings
were all born with a natural right to life, for God had created them and meant them to
preserve themselves and all other human beings. In order to do this they needed liberty
and property to maintain themselves and to prosper, both physically and morally.
Property was indeed a part of their bodies since it had been acquired by mixing physical
effort with the goods of the earth. On the whole people did not threaten each other, but
quarrels occur and require umpires who can settle them and execute their judgments.
Otherwise dissension escalates. These necessities bring rational men to make a contract
to abide by majority decisions in setting up basic laws that turn possession into legal
property, define crimes and establish a government that is strictly limited in its compe-
tence. It holds power in trust for the protection of the natural rights to life, liberty and
estate and for the safety of the citizens. When it fails to abide by its trust it may be
overthrown by a majority of the citizens.
This is not a subtle reading of John Locke, but it was what mattered to the outraged
colonists as they confronted [G]reat Britain. These were, as Locke had been, very old-
fashioned revolutionaries. They did not look to a better or transformed future. They were
not a prophetic historical vanguard. They pictured themselves as patient long-suffering
obedient subjects, who has been driven by frequent and novel abuses of power to recog-
nize that Parliament had broken its trust and become a mere tyrant who had forsaken the
ancient constitution and had trampled upon the natural rights of man. Parliament had also
violated their rights as Englishmen by treating them as if they were inferior to their cous-
ins in Europe, specifically by taxing them without representation. In either case they had
been deprived of their rights and they were obliged, reluctantly they professed, to rebel.
It has been argued very cogently that Locke was far from being the only source of
Revolutionary thinking in America. We have been quite properly reminded by Bernard
Bailyn and others that earlier doctrines going back to the English Civil War also played
their part. These older republican notions contributed a special concern for public virtue
and corruption, for civic discipline and a fear of laxity and anarchy among rulers. These
themes were, however, in no case incompatible with Lockean rights theory. In New
England the two reinforced one another. Consider the Election Sermon of Samuel
Langdon of Cambridge, Massachusetts in 1775. This man’s mind is an archeological dig.
Shklar 289

Puritan, civic, and Lockean phrases are all piled upon [34] each other. He is sure that
Americans are being punished for their lax sinfulness and rejoices in wartime shortages
which act like sumptuary laws. The British have, of course, sinned even more, having
become pagan, depraved, bloated with corruption, and despotical greed. They too will be
punished as the Jews were when they were sent into Babylonian exile and as the Romans
were when their empire was destroyed. There is, however, a path to be taken. As Mr.
Locke has proven one may rebel justly if the ruling powers violate their trust as the British
surely have. We have natural rights that we are obliged to defend. Finally, though he
dreads anarchy, he sees virtuous leaders assembled in Philadelphia and prays, not for vic-
tory, but regeneration.
I dwell on this remarkable oration because it gives us an inimitable picture of how
the idea of natural rights and the traditions of virtuous republicanism were joined14 in
one very typical New England mind. Langdon did not doubt that government was
obliged to defend natural rights and was driven to assert that belief in rebellion,
although he was obviously a highly law-abiding and even authoritarian person. He and
many of his fellow colonists became liberals out of the logic of their situation rather
than out of inner inclination.
No one ever said that James Otis was typical, but he is of considerable interest to
us here, because he introduced something new into the Lockean canon, the primacy
of the judiciary and the danger of slavery. His celebrated pamphlet The Rights of the
Colonies Asserted and Proved of 1764 claimed not only that the rights of North
American Englishmen were being violated, but also Lockean natural rights. Moreover,
he held fatefully on the authority of Lord Coke, James I’s Chief Justice that acts of
Parliament that were contrary to the constitution or to “natural equity” were void and
that the courts “must pass such acts into disuse.” Otis’s notion of rights in fact con-
tained both profoundly radical and deeply conservative impulses. Parliament held
only a fiduciary authority from the people and when it did not obey the “immutably
true” laws of nature rebellion was a right and a duty. Nothing could be more radical.
However it need never come to such an extremity, because the courts were there to
intervene first and their task it was clear, was to protect the traditional privileges and
immunities of Englishmen against all innovations. Nothing has even been more con-
servative. Rights could go either way.
Otis’s visionary tract contains an even more significant remark. The use of the word
“slavery” was common in the rhetoric of the time in both Britain and the colonies when
radical dissenters accused the government of oppressive policies, and Otis was not unu-
sual in making that charge as well. The question, however, is whether the use of the word
“slavery” had quite the same implications in America as it did in Europe. I believe that it
did not. In Europe the slave was a metaphor drawn from the annals of classical antiquity.
In America slavery referred to a living presence. Thus Otis’s insistence “that the colonists,
black and white, born here, are free born British subjects, and entitled to all the civil rights
of such” reveals that he at least knew exactly what the word, slavery, meant in America.
It was an institution that did much to reinforce the passion for rights, in both masters and
slaves. From Burke on, observers of the planters would have agreed with Edmund
Morgan’s remark that they had “a special appreciation of the [35] freedom dear to repub-
licans, because they saw every day what life was like without it.” We need merely follow
the speeches made by the underrepresented settlers in western parts of several States in
the 1830s and 1840s to recognize how great a part slavery played in their imagination.
290 Political Studies 71(2)

Whenever they made their demands for their right to vote or for equal representation, they
insisted that they were just like the slaves if they did not enjoy the full rights of citizens.
They were, however, not the only people who invoked the inalienable rights of [the]
Declaration of Independence. In due course it would serve the abolitionists and freed men
as well. To be sure, most Americans in the northern states were not abolitionists. Lincoln
certainly was not and he did not think that a black woman was his equal in all respects,
but he was sure that “in her right to eat the bread she earns with her own hands without
asking leave of anyone else, she is my equal and the equal of all others.” No one was to
speak the language of rights, however, more fervently that a self-liberated slave. “No
class of men can, without insulting their own nature, be content with any deprivation of
their rights,” Frederick Douglass wrote. Evidently the spirit of the Declaration rings in
his writings no less insistently than in Lincoln’s.
It should, however be noted that the spiritual tenor of abolitionism was in one signifi-
cant respect remote from Jefferson. These women and men were deeply religious. Here is
a typical preamble to a constitution of an anti-slavery society in New Jersey, “Whereas we
hold these truths to be self-evident, that all men are created equal . . . and whereas we
believe that slavery is contrary to the precepts of Christianity” and it ends with a call to
“obedience to our Savior’s Golden Rule.” These people felt deeply implicated in the sin
of slavery and they looked to their own liberation from sin no less than to the end of slav-
ery. Indeed two men as different as Lincoln and Thoreau shared this sense of being impli-
cated against their will in an evil institution that must somehow be ended. The liberation
of the slaves was not just a matter of restoring their inalienable rights to black Americans
in their view. They had also to liberate themselves from the compulsion of having to live
under immoral laws and even to benefit indirectly from them.
I dwell on this point because it throws some light on the position of positive and nega-
tive liberty in the liberalism of rights. The two are not at odds or in any way opposed to
each other. Indeed they are inseparable. People who are being forced to deny the negative
liberty of slaves and who are thus compelled to act against their conscience and religious
faith feel that their positive liberty is being denied and their rights are being violated.
Rights are inherently shared by all of humanity, whether one thinks of them in Christian
or in naturalist terms. The prevalence of slavery imposed a burden of unwanted shame
and constraint upon many people who took Jefferson’s words and public ethos of their
country seriously. The liberalism of rights, in short, rejects the separation of negative and
positive liberty, because the denial of the first entails the denial of the second, which is
also why the experience of slavery and its aftermath in our own century have contributed
so powerfully to America’s rights-centered liberalism.
It is generally a great mistake to underestimate the contribution of religion to the lib-
eralism of rights. It has done so in the work of a [36] conscience that rebels at the inflic-
tion of indignity upon one’s fellow beings. The second and the most significant liberal
dimension of religious life has been generated by the diversity of faiths in America. The
struggle for religious freedom15 has dominated the liberalism of rights from the first, and
not only in America. Its importance for both Jefferson and Madison cannot be overstated.
I think that on the whole it probably mattered more to Madison because he genuinely
cared about the purity of religion, while Jefferson hoped that it would become an insig-
nificant element in our lives.
In Madison’s view, the government must in no way interfere with religion so that all
could be perfectly sincere in their professions of faith. It is worth recalling also that he
wanted a clause exempting conscientious objectors from military service in the Bill of
Shklar 291

Rights, but was not able to persuade Congress to accept the notion. In retrospect it would
have saved the courts and later Congresses a lot of trouble if his suggestion had been
accepted. In both instances the right to worship as one may choose is grounded in the
belief that religion itself is wounded without it and that this causes profound harm to the
human spirit. Not all rights had that sort of primacy for Madison. The freedom of the
press was a matter of political necessity only. In a modern representative republic it was
vital that the citizens be well informed about the activities of their government and feel
unconstrained in expressing their views about them. There was no other way of ensuring
accountability. Significant as the right to a free press is under these political circum-
stances, it is derived from the imperatives of free government. It is not unconditional in
the way that religious toleration was for Madison.
No one can doubt that Madison’s was a liberalism of rights. Even when he argued
against a bill of rights, which his friend Jefferson wanted at once, he spoke in terms of
securing rights. It was better to have a few enforceable ones rather than many that could
not be secured. Moreover, if one has a bill of rights that did not cover all possible rights,
these might be treated with contempt. In this case, his apprehensions were both reason-
able and excessively cautious; reasonable because we now know of huge bills of rights
in the paper constitutions of some of the most repressive regimes on earth; too cautious,
however, because Americans could in fact learn to accept the demands of a bill of rights,
though it has never been easy, and certainly not perfect. I think one should think of the
Bill of Rights as political education, not unlike the preambles Plato regarded as neces-
sary to laws in his great dialogue The Laws. The liberalism of rights that came out of
Virginia in the eighteenth century was meant to have an educative effect and it is fair to
say that it has not been a futile gesture. It also reminds us that the liberalism of rights
makes rather heavy moral demands on citizens. Respecting the rights of others and
extending them to all is not easy or always agreeable, as we already saw in the case of
slavery. It is merely right.
If “nature” was more important to Thomas Jefferson than “nature’s God,” it does not
follow that he did nothing to promote religious freedom. The inalienable right to “the
pursuit of happiness” meant in the eighteenth century the right to seek one’s ultimate ends
either in this life or in the life to come, here on earth or in eternity. Jefferson had strong
psychological reasons for thinking that such a right was demanded by the very structure
of human nature itself, and as a deist he believed that God had created it thus. We are [37]
each one of us different in our mental as we are in our physical being and we believe what
we must accordingly. And while we are certainly open to education and persuasion and
change, it is clearly a violation of our nature to coerce us into accepting doctrines which
do not convince us on their merits. The right to happiness is thus coeval with the rights to
life and liberty, as a way of preserving our integrity.
This sketch of the early history of the liberalism of rights does much to define its pre-
sent character. We are heirs of both deep tradition and of the constant challenges that have
assaulted it. In the years after the Civil War the claim to rights was mostly made in the
courts which strengthened the hold of rights on our political discourse, because rights and
duties are the language of litigation, even when the outcome is a denial of rights. The
individual citizen-claimant thus remains the object even of general legislation, such as the
Voting acts, that sustain public rights. These victories were not the work of benevolent
planners, moreover, but of aggrieved minority citizens and their supporters who demanded
their civil rights.
292 Political Studies 71(2)

Finally we ought to recall that for half a century American liberals have been con-
fronted by formidable ideological enemies from abroad. They have done much to fortify
the faith in human rights. And in spite of the reactions of nervous, illiberal, and ill-
advised governmental agents who were prone to curtail the rights of Americans during
an ideological war, the liberalism of rights was energized by domestic no less than by
foreign opponents.
This account of the liberalism of rights would be incomplete if its many weaknesses
were ignored. Today, I want to mention only three criticisms that arise from within the
liberal tradition itself. One is that the emphasis on rights is self-defeating because it leads
to dangerous expansions of the powers of government that must threaten freedom eventu-
ally. The second claim is again that putting rights first fails to protect freedom fully
because it makes it impossible to enact and enforce any general laws for the common
good. And finally, it seems that there are no principles inherent in the liberalism of rights,
enabling it to resolve conflicts among rights.
These are certainly not trivial considerations, and they arise particularly among liber-
als who fear power or who look to legal security to protect the liberty of individuals. Let
us begin with the charge that the liberalism of rights is driven to encourage excessive
activity by governmental agents. At first glance this seems paradoxical. Were rights not
invented to check an imperial government and then to underwrite the notion that the best
government is one that governs the least? The truth is that the equality of rights enshrined
in the Declaration of Independence and in the Bill of Rights is not self-enforcing, espe-
cially not in a society that has always been committed to economic as well as political
freedom. As a result not only individuals but whole groups, especially ascriptive minori-
ties have demanded legal protection of their rights and the creation of conditions that
makes their realization possible. This has meant coercive legislation and Court decisions
to ensure that the rights of the excluded and weak are not erased or diminished. The
Jeffersonian belief that education and freedom itself would soon reduce government to
restraining the occasional felon and defending the country against remote foreign powers
was not [38] tenable, and the question of whether a government strong enough to protect
human rights is too frightening and potentially arbitrary is open. The best answer has to
be confidence in ideological and moral consistency. It can be assumed that those public
agents whose sole function is to protect the rights of citizens will not be tempted to abuse
their just powers to create an illiberal regime. This is unhappily only a hope.
The second worry, often heard in our day, is that liberty is best enhanced by general,
well-planned and comprehensive laws, that clearly define the duties of each citizen and
so, indirectly also secure the liberty of all. Far from impairing personal rights these would
be secured as the corollary of observed duties. Inequalities would be diminished, educa-
tion improved, and civic participation encouraged. Far from diminishing freedom, gen-
eral legislation for the public good would redistribute freedom to those who now have no
effective choices. Freedom, in short, is a public good that can be promoted best by coher-
ent public policies, not by a scramble for individual rights. Many contemporary “com-
munitarians” have also noted that, far from being in any sense opposed to personal
freedom, they are its most coherent advocates. By looking to shared principles and guide-
lines, rather than a tug of war between self-oriented claimants, they would do more for
liberty than the advocates of rights. In theory this is an extremely persuasive case, but
both the liberalism of personal development and the liberalism of rights regard it with
justifiable suspicion. The former fears community pressure and the weight of convention
which, even in the name of freedom, might crush the expression of aberrant individuality.
Shklar 293

The latter is not unreasonably worried by the political majorities that might be tempted to
force us to be free, by instructing us too energetically in our duties, whatever the justifica-
tion might be. Procedures to protect the individual might be threatened and the instru-
ments of public education might prove overwhelming. Let the aggrieved make their own
claims by and for themselves.
Finally there is a weakness in both the theory and practices of the liberalism of rights:
the absence of standards to resolve conflicts between rights. As long as rights were taken
to be self-evident it was assumed that a rational solution was always available to conflicts
of claims by referring them to a higher law. As we have abandoned God and nature as
plausible sources of rights we can no longer find knock-down absolutely irrefutable rules
for guidance in choosing between them. With only a universal preference for life and
some notion of human dignity taken for granted, it is by no means clear how to decide
between apparently equally valid claims. Is the right to a fair trial or the rights of a free
press more important? Is the freedom of speech of effective hate-mongers more important
than the potential danger they pose to their victim and the paralyzing fear they cause her,
which certainly impairs her right to pursue her happiness? Is a parent’s freedom of reli-
gion more important than the life of a child who needs immediate medical treatment, not
prayer? There is nothing in the liberalism of rights itself that offers an answer to these
difficulties which arise within its own orbit.
It has been argued that an answer is always possible because we can deduce one from
among the basic principles of the Declaration and the Constitution, but the contrary
answer can always be derived with just as [39] much logical rigor. There is no air-tight
answer, even if we trust the courts and our own political common sense to see us through.
Nor would the other members of the liberal tradition be of much help. In the face of these
uncertainties the liberalism of rights can only affirm that the idea of a common humanity
implies the fair treatment of all individual claims and that this justice defines the public
good. And indeed the liberalism of rights has always entailed a strong sense of justice.
But even the just may have difficulty in choosing between rights.
I have come to the close of my very inadequate survey of the liberal tradition. My
purpose has been to display its rich variety. There is far more to be said about rights espe-
cially and I hope others will continue my account, for surely it is a subject of great con-
cern to you and to all serious citizens.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publica-
tion of this article.

Funding
Edward Hall’s research for this article was sponsored by a Leverhulme Trust Research Fellowship
(RF2021-014/7).
Matt Sleat’s research for this article was sponsored by a Leverhulme Trust Research Fellowship
(RF-2022-273).

Notes
  1. As this is the editors’ final issue before handing over to a new editorial team, it will be the last time this
happens also.
  2. The lecture commemorates W. Lewis Abbott who taught at Colorado College for 29 years until his death
in 1949. Abbott had served as a Professor of Business Administration and Banking and then of Economics
294 Political Studies 71(2)

and Sociology. In 1974 the Abbott Memorial Lecture was given by Michael Oakeshott (from which those
details about Abbott have been sourced). His talk—“A Place of Liberal Learning”—became the lead essay
in his The Voice of Liberal Learning published 15 years later. Thank you to Timothy Fuller for giving us
some background on the lecture series and Colorado College Studies, and for permission to republish this
piece.
  3. Judith N. Shklar, “Rights in the Liberal Tradition,” Colorado College Studies 28 (1992), pp. 26–39. The
pagination from the original paper has been included in square brackets within the text here.
  4. Judith Shklar, Political Thought & Political Thinkers, Edited by Stanley Hoffman. Chicago and London:
University of Chicago Press, 1998; Redeeming American Political Thought, Edited by Stanley Hoffmann
and Dennis Thompson. Chicago and London: University of Chicago Press, 1998. Bernard Yack (ed.)
Liberalism without Illusions: Essays on Liberal Theory and the Political Vision of Judith N. Shklar
(Chicago, University of Chicago Press, 1996). Bernard Yack has confirmed that he was, indeed, unaware
of the lecture when putting together that bibliography.
  5. For that aspect of her work see After Utopia: The Decline of Political Faith. Princeton, NJ. Princeton
University Press, 2020; Legalism: Law, Morals and Political Trails. Harvard: Harvard University Press,
1986; “Political Theory and the Rule of Law,” Political Thought & Political Thinkers, 27–37; The Faces
of Injustice. New Haven: Yale University Press, 1990. For discussion of how these issues relate in Shklar’s
thought see Edward Hall, “Ideological Self-Consciousness: Judith Shklar on Legalism, Liberalism, and
the Purposes of Political Theory,” Social Philosophy and Policy (forthcoming).
  6. Many of these points are taken up by Shklar in a more extended way in “Conscience and Liberty,” in On
Political Obligation, Edited by Samantha Ashenden and Andreas Hess. New Haven and London: Yale
University Press, 2019, 1–15, and “Positive Liberty, Negative Liberty in the United States” in Redeeming
American Political Thought, 111–126.
  7. Judith Shklar, Ordinary Vices (Harvard: Harvard University Press, 1984), 237.
  8. Judith Shklar, American Citizenship: The Quest for Inclusion. Harvard: Harvard University Press, 2001, 9.
  9. [“seasons” in original; presumably unintended].
10. [“American” in original; presumably unintended].
11. [The original text reads “Tolerance and moderation are regarded as the liberal virtue and intrinsically
admirable human traits, and it demands a lot of self-restraint”].
12. [The original text reads “. . . individuals have as few resources as they have ever had not to protect
themselves against fear and shame.” We have removed “not” as the meaning of the original seems quite
opposed to the point Shklar is looking to make here.]
13. [“on” in original; presumably unintended].
14. [“jointed in the original; presumably unintended].
15. [“That” removed after “freedom”].

Author Biography
Judith N. Shklar (1928-1992) was the John Cowles Professor Professor of Government at Harvard University.